Malaysia’s Trafficking in Persons Report Ranking is Upgraded, While Thailand Remains on the Worst Offender List

Malaysia has been upgraded to the Tier 2 Watch List on the U.S. State Department’s yearly Trafficking in Persons Report ranking. This means that the United States no longer considers Malaysia one of the worst offenders when it comes to human trafficking. Thailand, on the other hand, is ranked among the worst offenders.

Countries are placed in one of four tiers on the Trafficking in Persons Report. Tier 1 includes countries that fully comply with the United States’ Trafficking Victims Protection Act (TVPA). Tier 2 includes countries that do not fully comply with the TVPA, but who are making significant efforts to comply. The Tier 2 Watch List includes countries who do not fully comply and still have negative indicators, yet who are are making significant efforts to comply. Tier 3 includes countries who do not fully comply and are not making significant efforts to do so.

Thailand remains in Tier 3, the lowest ranking group, for a second consecutive year. Only two other countries from the Asia region, North Korea and the Marshall Islands, were placed in Tier 3. In part, Thailand was downgraded from the Tier 2 Watch list in last year’s report because of labor abuses in its fishing industry. There is also a U.S. State Department Rule that countries have to be either upgraded or downgraded after two years on the Tier 2 Watch list.

Both Malaysia and Thailand have been internationally criticized this year for their trafficking of Rohingya and Bangladeshi migrants on overcrowded ships. Human traffickers transported the migrants,then leaft thousands stranded at sea with meager supplies.

Graves of Rohingya and Bangladeshi migrants were also found about two months ago in abandoned camps on both sides of the Thai-Malaysian border, along with pens that appear to have been used as cages for the migrants.

One of the many migrant graves found in Thailand

The Thai Minister of Foreign Affairs has released a statement that Thailand’s ranking is not an accurate portrayal of the efforts Thailand has made to decrease human trafficking. For instance, Thai state prosecutors brought charges against more than 100 people last week who have been suspected of trafficking migrants.

Lawmakers and human rights groups have criticized Malaysia’s upgrade, claiming that Malaysia was upgraded from Tier 3 to the Tier 2 Watch List for politicized reasons. They believe that the upgrade is politicized because it enables Malaysia to be a participating country in the Asia-Pacific trade agreement, the Trans Pacific Partnership (TPP). In June, the United States Congress approved legislation that limits President Obama’s ability to make free trade agreements with Tier 3 countries.

To counter those claims, Sarah Sewall, the U.S. Under Secretary of State for Civilian Security, Democracy and Human Rights has stated that Malaysia has made the effort to reform its trafficking victim protection system as well as to increase the number of investigations and prosecutions connected to human trafficking. However, convictions of human traffickers have decreased in Malaysia. Ms. Sewall denies that Malaysia’s upgrade was politicized.

Human rights groups assert that Malaysia has not sufficiently improved its handling of human trafficking issues to justify its upgrade from a Tier 3 country. They also claim that Malaysia’s upgrade diminishes the reliability of the Trafficking of Persons report.

30 July 2015 – Yesterday, in a landmark vote, the U.S. Senate Foreign Relations Committee unanimously approved “The Global Magnitsky Human Rights Accountability Act,” paving the way for its approval for a full vote in the Senate. The Global Magnitsky Act extends the concept of personalised sanctions on kleptocrats and human rights violators around the world, giving hope to victims from any country where those abuses occurred.

“Sergei Magnitsky‘s epic battle against evil, his faith in the law, and his ultimate sacrifice continue to empower and inspire lawmakers around the world to take concrete action and create real consequences for human rights abusers“, said William Browder, leader of the Magnitsky Justice campaign.

The new legislation is authored by U.S. Senator Ben Cardin (D-MD), Ranking Member of the Senate Foreign Relations Committee, who in 2010 together with Senator John McCain initiated the “Sergei Magnitsky Rule of Law Accountability Act,” an innovative 21-century piece of legislation that for the first time has provided redress and a meaningful way to deter impunity for corruption and human rights abuses in Russia.

The Russia-specific Magnitsky bill became law in December 2012. Over 30 persons have been included on the public sanctions list since. Persons included on the sanctions list are publicly named on the federal register, prohibited from obtaining U.S. visas and subject to a freeze on all their U.S. assets and bank accounts.

The Global Magnitsky bill authorises the President to create similar consequences for persons involved in corruption, extrajudicial killings, torture and other human rights violations from all countries around the world.

“This is an important step in a long road of targeting human rights abusers and corrupt individuals around the globe who threaten the rule of law and deny human rights or fundamental freedoms,”said Senator Cardin.

The bill authorizes the Secretary of State and the Secretary of the Treasury to report annually to Congress regarding actions taken against human rights abusers. In determining the sanctions list, the President must consider requests made by the Chairperson and Ranking Member of one of a number of congressional committee.

A German court sentenced Oskar Gröening, a 94-year-old former guard at Auschwitz concentration camp, to four years in prison on July 15th on 300,000 accounts of accessory to murder from May to July 1944. A judge in the city of Luenenburg convicted the “Bookkeeper of Auschwitz” for his role in collecting and cataloguing money and the belongings of Jewish prisoners as they entered the camp. Gröening’s trial is expected to be one of the last trials of surviving Nazis for their atrocities in the camps.

Oskar Gröening, 94, was convicted of 300,000 accounts of accessory to murder for collecting and recording the belongings of Jewish prisoners at Auschwitz-Birkenau concentration camp from May-July 1944.

Due to Gröening’s age, it is unclear how he will serve his sentence. However, his age was a factor in determining the length of his sentence, as the judge stated “he must still have the chance to spend part of his life in freedom after serving imprisonment.” The four years exceeds the three-and-a-half year sentence wanted by the prosecution.

Although Gröening did not dispute the charges against him, he admitted “moral guilt” for the murders that took place at the camp. He stated his belief that he was a “cog” in a Nazi killing machine, but was not directly responsible for the mass murders that took place. During testimony, Gröening commented, “Auschwitz was a place where you could not simply take part. I agree with that. I sincerely regret that I did not recognize that earlier. I am truly sorry.”

Throughout the trial, Gröening was brutally honest about the horrors he witnessed during his tenure at Auschwitz. He detailed how prison guards decided which prisoners would be killed immediately and which would be selected for work. During the two month period Gröening was convicted for, at least 137 cattle car trains rolled through Auschwitz. Of the 425,000 people that those trains carried, Gröning said 300,000 were immediately chosen for the gas chambers.

The 2011 conviction of concentration camp guard John Demjanjuk as an accessory to mass murder allowed German prosecutors to seek out charges against other former Nazis. Previously, a prison guard had to be convicted of a specific murder in order to be considered for charges. With the conviction of Demjanjuk, the pathway for more Nazi convictions opened, and allowed German prosecutors to seek charges against former officials even if a crime against a specific individual could not be proved. Gröening had faced similar charges in 1985, but the case was dropped due to a lack of evidence.

On May 12, the Syria Justice and Accountability Centre (SJAC) hosted a panel to launch a report entitled “A Step Towards Justice: Current Accountability Options for Crimes under International Law Committed in Syria.” One of the panelists, Jennifer Trahan from New York University’s Center for Global Affairs, wrote a full conference paperoutlining her arguments, which can be found in SJAC’s Transitional Justice Library. The following is a summary of the nine points from Trahan’s panel presentation and conference paper.

1. All sides of a conflict must be prosecuted.

A future tribunal in Syria cannot have jurisdiction only over “ISIS” or “Assad regime” crimes. The Special Court for Sierra Leone, for example, increased its legitimacy when it prosecuted perpetrators from all three key warring factions from the Sierra Leone Civil War. Hybrid tribunals are not inherently one-sided, and it is the international community’s responsibility to ensure that the mechanism prosecutes all key perpetrators.

2. We have to start somewhere.

I agree with the SJAC report that a Syria tribunal may be years away. For now, there are pockets of jurisdiction that need to be utilized, including the ICC which has limited jurisdiction over “foreign fighters” who are from countries that are State Parties to the Rome Statute. Here I disagree somewhat with the SJAC report. I think it would make a powerful statement for the ICC to prosecute foreign fighters. Even lower ranking perpetrators could trigger the court’s gravity threshold.

3. Do not wait for peace to pursue accountability.

The SJAC report states “it is urgent to pursue some form of justice prior to the end of the conflict.” If one waits until all the crimes are over before attempting to pursue justice, then there is no possibility of deterrence. While it is indeed hard to prove that international justice causes deterrence, the international community can only use the tools that it has at its disposal.

4. The appearance of fairness takes priority.

The Iraqi High Tribunal (IHT) provides many lessons on why impartiality is vital. The IHT’s appearance of fairness was undermined due to shortcuts in due process and political interference, but it was the incorporation of the death penalty into the IHT Statute that led Europeans to discontinue their cooperation with the IHT. This was not the kind of internationalized approach one would like to see, and it also gave the optics that the US, the only country left providing assistance, was in a position to control these trials. Although the vast majority of Iraqis were in support of the death penalty, this issue ultimately undermined what the IHT otherwise could have accomplished.

5. Imperfect justice may be better than no justice.

Here, my remarks are again somewhat different from the conclusions in the SJAC report. The negotiations for the Extraordinary Chambers in the Courts of Cambodia (ECCC) were very lengthy and there was always concern that the resulting tribunal would be susceptible to manipulation by the Cambodian government. It may have been imperfect, but had the international community insisted on a perfect ECCC, there likely would have been no accountability for the approximately 2 million victims.

6. Mass atrocity crimes must be addressed with a multi-tiered solution.

The ICC has limited capacity and would not be sufficient to prosecute all the perpetrators in Syria. The same is true for an ad hoc or hybrid tribunal. And, at the national level, Syrian courts will need increased capacity to adjudicate war crimes. The solution, ultimately, as the SJAC report points out, should eventually include a multi-tiered approach that includes truth commissions, reparations, memorialization, vetting, and security sector reforms.

7. Projecting oncoming accountability is important for deterrence.

In recent years, the ICC Prosecutor has travelled to both Kenya and Guinea to announce that anyone who incites violence will be subject to an ICC investigation. The ICC Prosecutor should also put out a robust message that she is continuously watching and assessing the situation in Syria because it is important for the international community to let it be known that prosecutions can and will occur. It is through these kinds of actions that one hopes deterrence may occur.

8. Justice must not be bargained away at the negotiating table.

In the event of peace negotiations for Syria, as were attempted previously in Montreux, Switzerland, they must leave open the possibility for accountability to occur. Ideally, there would be a clear commitment to prosecutions. Second best, would be to ensure that future accountability is not foreclosed.

9. We need optimism to stay the course.

For years, it was unclear whether Radovan Karadžić and Ratko Mladić, as well as other ICTY indictees, would end up in The Hague. And yet they did. The SJAC report presents a number of reasons why hybrids or the ICC could not work. Yes, tribunals come at a high price, but doing nothing has a higher cost. When one has lofty goals, one must also have optimism

Conclusion

While prosecution is always second-best to preventing the crimes in the first place, the field of international justice has come too far for the horrific atrocity crimes being perpetrated in Syria today not to warrant a robust response from the international community. Every state owes a responsibility to ensure this happens.

On International Justice Day, the head of ICTJ’s Criminal Justice program in the Democratic Republic of the Congo (DRC), Myriam Raymond-Jetté, reflects on how to build on small successes in prosecuting international crimes in the national courts.

This summer, Hissène Habré, the former dictator of Chad, will finally stand trial before the Extraordinary African Chambers in Senegal for crimes against humanity, torture, and war crimes. In a conversation withReed Brody, counsel and spokesperson of Human Rights Watch, who has worked with Hissène Habré’s victims since 1999, we discussed the potential impact of the trial on Chad and its broader significance for the struggle against impunity in Africa.

In this edition of ICTJ Dispatch, Ruben Carranza, Director of ICTJ’s Reparations Program, reports on his recent mission to Myanmar. The country, slowly transitioning from a military dictatorship to a civil democracy, has failed to live up to many of the expectations for change and reform. Transitional justice measures, in particular, have failed to materialize, despite some initial steps to hold the government, the military, and elites accountable.

Bosnia and Herzegovina is marking the twentieth anniversary of the Srebrenica genocide. In this Op-Ed, ICTJ’s Refik Hodzic asks, can we constructively talk about reconciliation in a country still gripped by war?

The International Center for Transitional Justice (ICTJ) held a seminar for Congolese military and civilian magistrates on June 24 and 25, 2015, to discuss a national strategy for prosecuting international crimes and prioritizing cases to clear the backlog in national courts. The seminar aimed to examine and propose solutions for why so many well-documented crimes committed by armed groups in the Democratic Republic of the Congo remain unaddressed.

On 26 June each year, the world marks the International Day in Support of the Victims of Torture. The day was instituted in 1997 by the General Assembly of the United Nations, in an effort to build up the unanimity of condemnation required to abolish torture effectively in our time. In the effort to draw attention to the struggle against torture that this international commemoration signifies, we spoke to Juan Méndez, the UN Special Rapporteur on Torture and President Emeritus of ICTJ.

To read the full stories at International Center for Transitional Justice click HERE